Lowmiller

The plaintiff sued for damages for personal injuries. The cause was tried before a jury and resulted in a verdict in favor of plaintiff for two thousand five hundred dollars. From the judgment following the verdict the defendants have appealed upon typewritten transcripts.

The injuries, which are the basis of the action, were caused while the plaintiff was riding in an automobile operated by the defendant Augustine. The negligence of the driver and the amount of the verdict are not questioned on this appeal, the single issue being whether the defendant Augustine at the time of the accident was an employee of his co-defendant or whether he was acting as an independent contractor. The defendant Monroe, Lyon & Miller, Inc., which will *149 hereafter be referred to as the corporation, held a contract with the owner for the sale of the lots of the Los Altos Country Club properties located near the town of Los Altos in Santa Clara County. In its office in San Francisco the corporation maintained a large corps of salesmen who had been granted licenses as real estate salesmen by the state real estate commissioner upon the approval of this corporation. Among these were Mr. Clark, Mr.…

In its petition for rehearing herein the appellant complains that the opinion heretofore filed fails to refer to certain assignments of error made by appellant and particularly to the giving of certain instructions. Notwithstanding the fact that appellant wholly failed to comply with the provisions of section 953c of the Code of Civil Procedure and with rule 8 of the rules of the Supreme Court, we did consider the assignments made, but did not touch upon them as we considered them wholly without merit.

As to the instruction covering the law of ostensible agency, it is argued that under no circumstances can the doctrine of ostensible agency apply in an action for tort, and the cases of Barton v. Studebaker Corporation, 46 Cal. App. 707 [ 189 Pac. 1025 ], and Smith v. Belshaw, 89 Cal. 427 [ 26 Pac. 824 ], are cited as authority. Neither case supports the rule contended for. Both hold that, under the facts of the particular case considered, proof of ostensible agency was insufficient to fasten liability on the purported master. The rule applicable to the case at hand is fully stated in Donnelly v. San Francisco Bridge Co., 117 Cal. 417, 422 [ 49 Pac. 559 ], where the express…

The plaintiff sued for damages for personal injuries. The cause was tried before a jury and resulted in a verdict in favor of plaintiff for two thousand five hundred dollars. From the judgment following the verdict the defendants have appealed upon typewritten transcripts. The injuries, which are the basis of the action, were caused while the plaintiff was riding in an automobile operated by the defendant Augustine. The negligence of the driver and the amount of the verdict are not questioned on this appeal, the single issue being whether the defendant Augustine at the time of the accident was an employee of his co-defendant or whether he was acting as an independent contractor. The defendant Monroe, Lyon Miller, Inc., which will *Page 149 hereafter be referred to as the corporation, held a contract with the owner for the sale of the lots of the Los Altos Country Club properties located near the town of Los Altos in Santa Clara County. In its office in San Francisco the corporation maintained a large corps of salesmen who had been granted licenses as real estate salesmen by the state real estate commissioner upon the approval of this corporation. Among these were Mr. Clark, Mr.…